Bill Text: NY A05201 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to increasing penalties for violations relating to residential care programs for adults and children; and amends provisions relating to determination of violations.
Spectrum: Strong Partisan Bill (Democrat 11-1)
Status: (Introduced - Dead) 2014-01-08 - referred to health [A05201 Detail]
Download: New_York-2013-A05201-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5201
2013-2014 Regular Sessions
I N A S S E M B L Y
February 21, 2013
___________
Introduced by M. of A. GOTTFRIED, GUNTHER, COLTON, JAFFEE, LIFTON,
ENGLEBRIGHT -- Multi-Sponsored by -- M. of A. ARROYO, PAULIN -- read
once and referred to the Committee on Health
AN ACT to amend the social services law, in relation to penalties for
violations relating to residential care programs for adults
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 7 and paragraphs (a) and (b) of subdivision 9
2 of section 460-d of the social services law, subdivision 7 as added by
3 chapter 669 of the laws of 1977, paragraph (a) of subdivision 7 as
4 amended by chapter 719 of the laws of 1989, paragraph (b) of subdivision
5 7 as amended by chapter 524 of the laws of 1984, subparagraph 2 of para-
6 graph (b) of subdivision 7 as amended by chapter 733 of the laws of
7 1994, paragraph (a) of subdivision 9 as amended by chapter 558 of the
8 laws of 1999 and paragraph (b) of subdivision 9 as added by chapter 848
9 of the laws of 1992, are amended to read as follows:
10 7. (a) The department shall adopt regulations establishing civil
11 penalties of up to [one] FIVE thousand dollars PER VIOLATION per day to
12 be assessed against all adult care facilities except facilities operated
13 by a social services district for violations of (i) regulations of the
14 department pertaining to the care of residents in such facilities, (ii)
15 paragraph (a) of subdivision three of section four hundred sixty-one-a
16 of this [chapter] ARTICLE, or (iii) an order issued pursuant to subdivi-
17 sion eight of this section. The regulations shall specify the violations
18 subject to penalty and the amount of the penalty to be assessed in
19 connection with each such violation and shall specify that only civil
20 penalties of up to [one] FIVE thousand dollars PER VIOLATION per day
21 [per violation] shall be assessed pursuant to this paragraph against an
22 adult care facility found responsible for an act of retaliation or
23 reprisal against any resident, employee, or other person for having
24 filed a complaint with or having provided information to any long term
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01610-01-3
A. 5201 2
1 care [patient] ombudsman functioning in accordance with section [five
2 hundred forty-four or five hundred forty-five] TWO HUNDRED EIGHTEEN of
3 the [executive] ELDER law.
4 (b) [(1)] In addition to any other civil or criminal penalty provided
5 by law, the department shall have the power to assess civil penalties in
6 accordance with its regulations adopted pursuant to paragraph (a) of
7 this subdivision, after a hearing conducted in accordance with the
8 procedures established by regulations of the department. Such procedures
9 shall require that notice of the time and place of the hearing, together
10 with a statement of charges of violations, shall be served in person or
11 by certified mail addressed to the facility at least thirty days prior
12 to the date of the hearing. The statement of charges of violations shall
13 set forth the existence of the violations, the amount of penalty for
14 which it may become liable and the steps which must be taken to rectify
15 the violation and, where applicable, a statement that the department
16 contends that a penalty may be imposed under this paragraph regardless
17 of rectification. An answer to the charges of violations, in writing,
18 shall be filed with the department, not less than ten days prior to the
19 date of hearing. The answer shall notify the department of the facili-
20 ty's position with respect to each of the charges and shall include all
21 matters which if not disclosed in the answer would be likely to take the
22 department by surprise. The commissioner, or a member of his staff who
23 is designated and authorized by him to hold such hearing, may in his
24 discretion allow the facility to prove any matter not included in the
25 answer.
26 (C) Where the facility satisfactorily demonstrates that it either had
27 rectified the violations within thirty days of receiving CERTIFIED writ-
28 ten notification of the results of the inspection pursuant to section
29 four hundred sixty-one-a of this [chapter] ARTICLE, or had submitted
30 within thirty days an acceptable plan for rectification and was rectify-
31 ing the violations in accordance with the steps and within the addi-
32 tional periods of time as accepted by the department in such plan, [no]
33 THE DEPARTMENT MAY DETERMINE THAT THE penalty UNDER THIS SECTION shall
34 be REDUCED FROM WHAT OTHERWISE WOULD BE imposed[, except as provided in
35 subparagraph two of this paragraph.
36 (2) Rectification shall not preclude the assessment of a penalty if
37 the department establishes at a hearing that] OR WAIVED. IN MAKING A
38 DETERMINATION UNDER THIS PARAGRAPH, THE DEPARTMENT SHALL CONSIDER:
39 (I) WHETHER a particular violation[, although corrected,] endangered
40 or resulted in harm to any resident [as the result of:
41 (i)], IN WHICH CASE THE PENALTY SHALL NOT BE REDUCED OR WAIVED. ENDAN-
42 GERMENT IS DEFINED AS:
43 (A) the total or substantial failure of the facility's fire detection
44 or prevention systems, or emergency evacuation procedures prescribed by
45 department safety standard regulations;
46 [(ii)] (B) the retention of any resident who has been evaluated by the
47 resident's physician as being medically or mentally unsuited for care in
48 the facility or as requiring placement in a hospital or residential
49 health care facility and for whom the operator is not making persistent
50 efforts to secure appropriate placement;
51 [(iii)] (C) the failure in systemic practices and procedures;
52 [(iv)] (D) the failure of the operator to take actions as required by
53 department regulations in the event of a resident's illness or accident;
54 [(v)] (E) the failure of the operator to provide at all times super-
55 vision of residents by numbers of staff at least equivalent to the night
56 staffing requirement set forth in department regulations; or
A. 5201 3
1 [(vi)] (F) unreasonable threats of retaliation or taking reprisals,
2 including but not limited to unreasonable threats of eviction or hospi-
3 talization against any resident, employee or other person who makes a
4 complaint concerning the operation of an adult care facility, partic-
5 ipates in the investigation of a complaint or is the subject of an
6 action identified in a complaint.
7 The department shall specify in its regulations those [regulations]
8 VIOLATIONS to which this [subparagraph two] PARAGRAPH shall apply[.
9 (3) In assessing penalties pursuant to this paragraph, the department
10 shall consider promptness];
11 (II) WHETHER A PARTICULAR VIOLATION IS ONE OF THE FOLLOWING:
12 (A) A VIOLATION WHEREIN HARM, SHORT OF ENDANGERMENT AS DEFINED IN
13 SUBPARAGRAPH (I) OF THIS PARAGRAPH, WAS ACTUALLY COMMITTED;
14 (B) A VIOLATION WHEREIN A RESIDENT OR RESIDENTS WERE PUT AT RISK OF
15 HARM; OR
16 (C) A VIOLATION WHEREIN A RESIDENT WAS NEITHER HARMED NOR PUT AT RISK
17 OF HARM;
18 (III) THE FACILITY'S HISTORY OF PROVIDING QUALITY CARE, VIOLATIONS;
19 AND
20 (IV) PROMPTNESS of rectification, delay occasioned by the department,
21 and the specific circumstances of the violations as mitigating factors.
22 [(c)] (D) Upon the request of the department, the attorney general may
23 commence an action in any court of competent jurisdiction against any
24 facility subject to the provisions of this section, and against any
25 person or corporation operating such facility, for the recovery of any
26 penalty assessed by the department in accordance with the provisions of
27 this subdivision.
28 [(d)] (E) Any such penalty assessed by the department may be released
29 or compromised by the department before the matter has been referred to
30 the attorney general, and where such matter has been referred to the
31 attorney general, any such penalty may be released or compromised and
32 any action commenced to recover the same may be settled and discontinued
33 by the attorney general with the consent of the department.
34 (a) The department shall have authority to impose a civil penalty not
35 exceeding [one] FIVE thousand dollars PER VIOLATION per day against, and
36 to issue an order requiring the closing of, after notice and opportunity
37 to be heard, any facility which does not possess a valid operating
38 certificate issued by the department and is an adult care facility
39 subject to the provisions of this article and the regulations of the
40 department. A hearing shall be conducted in accordance with procedures
41 established by department regulations which procedures shall require
42 that notice of the determination that the facility is an adult care
43 facility and the reasons for such determination and notice of the time
44 and place of the hearing be served in person on the operator, owner or
45 prime lessor, if any, or by certified mail, return receipt requested,
46 addressed to such person and received at least twenty days prior to the
47 date of the hearing. If such operator, owner or prime lessor, if any, is
48 not known to the department, then service may be made by posting a copy
49 thereof in a conspicuous place within the facility or by sending a copy
50 thereof by certified mail, return receipt requested, addressed to the
51 facility. A written answer to the notice of violation may be filed with
52 the department not less than five days prior to the date of the hearing.
53 Demonstration by the facility that it possessed an operating certificate
54 issued pursuant to this article, article twenty-eight of the public
55 health law or article sixteen, [twenty-three,] thirty-one or thirty-two
56 of the mental hygiene law at the time the hearing was commenced shall
A. 5201 4
1 constitute a complete defense to any charges made pursuant to this
2 subdivision.
3 (b) [The penalty authorized by this section shall begin to run thirty
4 days after the department provides the operator, in writing, with a
5 summary of the inspection of the facility by which the department deter-
6 mined that he or she is operating an uncertified adult care facility.]
7 The submission of an application by the operator for an operating
8 certificate for the facility shall not act as a bar to the imposition of
9 a penalty against the operator OF AN UNLICENSED ADULT CARE FACILITY.
10 S 2. This act shall take effect on the ninetieth day after it shall
11 have become a law; provided that any rules and regulations, and any
12 other actions necessary to implement the provisions of this act on its
13 effective date are authorized and directed to be completed on or before
14 such date.
